In the Matter of Dorman: What Does it Mean?
By Victoria Neilson on 05/06/2011 @ 08:06 PM
Yesterday the Attorney General (pictured) took an unusual step in vacating (setting aside) the removal (deportation) order against a gay man who is in a long-term partnership and civil union with an American citizen. The case has received wide press coverage because this is the first time the administration has set aside a removal order for a gay couple and because it is only the second public statement about DOMA by the attorney general since he announced in February that the Department of Justice will no longer defend DOMA challenges in court.
Does this case mean that foreign nationals in civil unions or marriages can’t be deported?
Unfortunately, at least in the short term, no. The Attorney General (AG) is the head of the Department of Justice (DOJ) and he has the authority to set aside decisions by the Board of Immigration Appeals (BIA) as he did in this case. The BIA hears appeals from immigration court. In this case, the AG didn’t actually decide anything regarding DOMA, civil unions, and removal proceedings. Instead, he set aside the BIA’s prior decision and asked the BIA to answer questions about whether civil unions are the equivalent or marriage under NJ law; whether without DOMA, a NJ civil union would be the equivalent of a marriage under immigration law; when the couple entered their civil union; and whether they met the legal hardship standard for cancellation of removal.
What is cancellation of removal?
Cancellation of removal is a form of relief that an immigration judge can give to a foreign national who is in removal proceedings. The foreign national can win lawful permanent residence if he can show that he has been in the U.S. for more than ten years, has been a person of good moral character, and his removal from the U.S. would result in extreme, and exceptionally unusual hardship to his U.S. citizen or green card holding spouse, parent or child. Unless a foreign national has a qualifying American relative, he cannot apply for cancellation.
What happened in this case?
In this case the immigration judge found that Mr. Dorman did not have a qualifying relative and the BIA upheld that decision. The AG has now set aside the BIA decision and sent the case back to the BIA.
What will happen in this case?
It’s not clear. The BIA could issue a decision answering the AG’s questions at some point in the next few months, or it could remand the case to the immigration judge for further fact-finding. In the short-term, it’s great news for this couple because it means while the case is being fought further, Mr. Dorman can remain in the U.S. with his partner.
What does this decision mean for other cases?
It remains to be seen what effect this decision will have on other cases pending for foreign nationals in legally recognized relationships with Americans. It is certainly a positive sign that the AG is asking these questions and continuing to think about how DOMA applies or doesn’t apply in the immigration context.
Why did the AG make this decision?
Again, the answer is not clear, but it may have been as a result of pressure that U.S. Senators, led by John Kerry and Patrick Leahy, and Representatives, led by Zoe Lofgren, have put on the Administration to stop deporting the partners of Americans while the Courts and Congress grapple with the constitutionality of DOMA.
To read the full (two paragraph) decision, click here.
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